S NAGANNA Vs. KRISHNA MURTHY

JUDGEMENT

(1.) The petitioner is Naganna who is a complainant in C. G, No. 17 of 1964 on the file of the learned Munsif-Magistrate, Narasipatnam. He has filed the revision petition to set aside the order of the learned Munsif-Magistrate dated rejecting a memo filed by him.

(2.) The relevant facts are as follows:- Naganna filed a private complaint against Krishnamurthy and Appa Rao, two police constables attached to Kottakota Police Station under S. 326 and S. 324 I. P. C. A. pleader filed appearance for the two accused constables. Subsequently, the A. P. P Grade 1 filed a memo dated 9-6-1964 as follows:- "I am instructed by the Collector to defend the accused in this case. The accused are given state defence." Subsequently, the complainant filed a memo dated 15-6-1964 in which he contended as follows:- "The above case is a private case and the allegation do not show that the accused did anything in course of their official capacity. The prosecutor (A. P. P. Grade 1) is appointed under the Cr. P. C. to conduct prosecution. He cannot be permitted to conduct defence in any case. The accused also engaged a private Advocate. As such the A. P. P. Grade-1 may not be permitted to cross-examine prosecution witnesses." The learned Munsif-Magistrate passed an order on 15-6-1964 as follows:- ".................................................................. A. P. P. Grade-1 has urged that he was authorised by the District Collector to defend the accused that the Collector is competent to give such authorisation to A. P. Ps. to defend a Government servant who is an accused in a private case and that there are G. Os. also to that effect. He also filed a memo .................................................................................. I am of opinion that the contention of the A. P. P. Grade-1 is tenable. Hence the memo filed by the petitioner.

(3.) Section 340 Cr. P. C. runs as follows:- "340 (1). Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such court, may of right be defended by a pleader. (2) .................................................................... Section 4 (1) (r). Cr. P. C. runs as follows:- "Pleader used with reference to any proceeding in any court, means a pleader (or a mukhtar) authorised under any law for the time being in force to practice in such court, and includes, (1) an advocate, a vakil and an attorney of a High Court so authorised, and (2) any other person appointed with the permission of the court to act in such proceedings." Rules 80 and 81 of the Criminal Rules of Practice run as follows:- "80. The Code of Criminal Procedure gives to every Magistrate a discretion to permit persons, other than legal practitioners authorised by any other law to practice in such court to act in Criminal Proceedings before him. This discretion is to be exercised by the Magistrate according to the circumstances of each case, and in deciding whether permission should be given or not, the character of the person appointed is one of the matters to be taken into consideration. It would be wrong use of the discretion to grant such permission to a person of bad character or to one who has been convicted of a criminal offence or whose character or conduct is such that he would have been suspended or dismissed if he had been regular pleader." 81. The practice of allowing unlicensed person to appear as pleaders systematically and as a matter of course is reprehensible. Having regard to the large number of qualified practitioners now available in every part of the State, the discretion to permit private pleaders to appear and argue cases should be exercised as sparingly as possible, and when such permission is granted the reasons for granting it must be recorded in writing. In general no person who is not a qualified legal practitioner should be permitted to act except to prevent a possible miscarriage of justice ............." The A. P. P. Grade-1 must obviously be a qualified legal practitioner in view of the system of recruitment to that office. But, when he was recruited as A. P. P. Grade-1 he cannot be in the position of an Advocate practising in the bar. Therefore, he cannot accept an engagement as a pleader to defend an accused like a practising pleader who had not suspended practice.